Special Counsel Jack Smith “waived” the right to request Florida Judge Aileen Cannon be recused from Donald Trump‘s classified documents case in a recent court filing, according to a former prosecutor and district attorney.
Joyce Vance, the former U.S. attorney for the northern district of Alabama, made the claim on the CAFE Insider podcast she co-hosts with Preet Bharara, another former U.S. attorney.
Trump had been facing 40 federal charges over allegations he illegally held on to classified documents after leaving the presidency in January 2021, and then obstructed efforts by the relevant federal authorities to have them returned. This resulted in the FBI raiding Trump’s Mar-a-Lago private members club to recover the documents in August 2022. The former president pleaded not guilty to all criminal charges.
In July 2024, Cannon announced she was dismissing the case after concluding that Smith’s appointment as special counsel, in which role he’d been overseeing the case, was unconstitutional because it had not been approved by the Senate. On August 26, Smith appealed this decision to the 11th Circuit court, claiming Cannon’s ruling was “at odds with widespread and longstanding appointment practices” at the Department of Justice.
Referring to Smith’s appeal, Bharara said: “What’s missing from the brief is the request that the case be reassigned to a Judge other than Aileen Cannon, and a lot of people have speculated that they would request that.
Vance added: “In the 11th Circuit, if you don’t make an argument in your opening brief, you’ve waived it, so Jack Smith will not be able to make the argument in his reply brief or oral argument.”
Newsweek reached out to Smith through the Department of Justice press office via online contact form and Donald Trump’s legal team via email for comment.
Special Counsel Jack Smith speaks in Washington, D.C., on August 1, 2023. Smith made no effort to get Florida Judge Aileen Cannon removed from Donald Trump’s classified documents case in a recent court filing.
SAUL LOEB/AFP/GETTY
In a blog post, David Lat, a former federal prosecutor turned legal commentator, predicted the 11th Circuit court would “reverse” Cannon’s decision to dismiss the case.
However, he expressed uncertainty about what would happen if the case ended up before the Supreme Court, which recently ruled that presidents have legal immunity for official acts undertaken in office.
“I adhere to my prior prediction that the Eleventh Circuit will reverse Judge Cannon,” Lat said.
“But I remain uncertain about how the Supreme Court would rule if they decide to hear the case, given the strong feelings that some conservative justices have about the separation of powers and executive authority—reflected in, of course, their ruling in Trump v. United States (aka the immunity case).”
In May, Trump was convicted of 34 counts of falsifying business records, which prosecutors said he did to cover up the payment of hush money to former adult film star Stormy Daniels before the 2016 presidential election. Trump branded the ruling “rigged” and is currently awaiting sentencing in the case.
Separately, Trump has been charged over claims he broke the law attempting to overturn Joe Biden‘s 2020 presidential election win in two cases, one federal and the other specific to Georgia. He has pleaded not guilty to all charges and denies any wrongdoing.
